T 0898/05 (Hematopoietic receptor/ZYMOGENETICS) du 07.07.2006

Main request - industrial application (yes)
Referral to the Enlarged Board of Appeal (no)
Remittal to the first instance (yes)

1. For the purposes of Article 57 EPC, a claimed invention must have such a sound and concrete technical basis that the skilled person can recognise that its contribution to the art could lead to practical exploitation in industry, i.e. to a concrete benefit, which is immediately derivable directly from the description, if it is not already obvious from the nature of the invention or from the background art. It is necessary to disclose in definite technical terms the purpose of the invention and how it can be used in industrial practice to solve a given technical problem, this being the actual concrete benefit or advantage of exploiting the invention. (cf. points 5 and 6 of the Reasons).
2. The fact that a function is based on computer-assisted methods, rather than on the basis of traditional wet-lab techniques, does not mean that it has to be automatically disregarded or excluded from a careful and critical examination. Their probative value has to be examined on a case-by-case basis regarding the nature of the invention and the prior art relating thereto (cf. point 22 of the Reasons).
3. The function of a protein (and thus of the nucleic acid encoding it) can be seen at different levels, which include its molecular function, its cellular function and its biological function in a broad sense. The elucidation of one of these particular levels of function might result, under certain conditions, in a straightforward industrial application, even though the other levels of activity remain completely unknown or only partially characterized. For the purpose of Article 57 EPC and Rules 23e(3) and 27(1)(f) EPC, none of these levels is more fundamental than the other ones insofar as at least from one of these levels a practical application (a profitable use in a wider sense) is derivable in a straightforward manner (cf. points 29 and 30 of the Reasons).